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Washington Process to Amend Mainstem Water Use Rules by Barry Espenson Columbia Basin Bulletin - October 25, 2002

In an effort to better meet the water needs of a diverse population and, reduce the need for legal battles over the limited water supply, the Washington Department of Ecology on Tuesday formally filed a proposal to develop a new way for managing the waters of the Columbia River.

"I can't think of a greater symbol of our region's prosperity than the resources provided by the Columbia River," Tom Fitzsimmons, WDOE director, said. "From power generation to a rebounding fishery to irrigation for farming and water for growing communities, the river is literally a lifeline reaching well beyond our state's boundaries. It's time we took another look at how this vital resource is managed in the 21st Century."

Launching the open, public process is a step in the right direction according to one of the groups engaged in legal action against the state.

"The ability to work a settlement out of court is greater than it has been" because of the decision to begin official "rulemaking," said Daryll Olsen, a consultant and principal representative to the Columbia-Snake River Irrigators Association board of directors.

The state agency filed what is called a CR-101, a mechanism for beginning the process. The proposal calls for amending the "Instream Resources Protection Program for the Main Stem Columbia River" and the "Water Resources Program for the John Day-McNary Pools Reach of the Columbia River." The proposal replaces an earlier CR-101 filed by the department in July 2001.

The decision comes in response to a rule petition filed by the Columbia-Snake River Irrigators Association, the city of Brewster and several state legislators. The CR-101 says the department was also petitioned by the Center for Environmental Law and Policy, American Rivers, the National Wildlife Federation and the Pacific Fisheries Council. The irrigators want more water rights processed; the conservation groups say the river is overtapped and water should be left in-river for fish.

"Competition is the best word I can think of to describe the conflicts that continue to escalate along the river," Fitzsimmons said, citing the need to support fish listed under the Endangered Species Act, as well as unlisted fish, and also deal with hundreds of pending applications for new water withdrawals from the Columbia.

"Last year's energy crisis and the down-turn in the economy have only intensified the need for a sound management plan," he said.

From Dec. 21, 1991, to July 27, 1997, there was a moratorium on new withdrawals from the Columbia River due to concerns about a dwindling salmon population.

The proposed rule formally begins the public mechanism for gathering ideas and comment to help create a new plan that will "allow the basin's economy to grow while making progress on salmon recovery goals," Fitzsimmons said in a letter to the CSRIA's Tom Mackay.

Gov. Gary Locke, in a separate letter, told Mackay that "while this proposed rule does not contain the specific content you requested, the issues you raise will receive thorough consideration through the rule-making process."

Those CSRIA "issues" include:

• maintaining the state's John Day-McNary reservations, the amount of water in the reservations, and access to the waters of the reservations;
• removing stream-flow requirements of WAC 173-563 and prohibiting of any other flow requirements as conditions in the future, and
• preserving the priority date for withdrawals from reservation waters.

In 1998, the WDOE adopted a rule amendment that calls for the department to consult with fish agencies, tribes and local governments before approving new withdrawals from the river. The state agency subsequently began working on a batch of water-right requests and was ready to issue decisions last fall when a court order put a stop to the process. A Benton County court has made a preliminary ruling that the state's existing consultation process is "unworkable" and the agency remains in litigation over the proposed decisions.

"We've won two rounds on this," Olsen said. Benton County Superior Court decisions in the case have said that the state does not have the legal right to impose federal flow targets in the river intended to protect fish and that the one million acre feet "reservation" of river water for irrigation and municipal purposes "is real," Olsen said.

The irrigators would like to see access to that 1 million acre foot reservation expanded to mainstem reaches outside the John Day and McNary pools, Olsen said.

Discussions have picked up pace regarding a settlement in the lawsuit filed, he said. Oral arguments are set to begin Nov. 18 unless a settlement agreement is reached.

"There's got to be a better way to manage the river than to rely on piecemeal court proceedings every time water-right decisions are made," Fitzsimmons noted. "By initiating rule-making, we hope to involve people throughout the region in crafting a plan that allows the basin's economy to grow, diversify and be sustained."

A key consideration during the rule-making process, Fitzsimmons said, will be the future management of the John Day and McNary reservations. The reservations were set aside by the state in 1980 for future allocation in the Tri-Cities and Horse Heaven Hills for irrigation and municipal uses.

"Ultimately, our goal is to ensure an adequate supply of water to support growing communities, a sound economy and healthy environment," Fitzsimmons said. "To get there we must set aside our differences and meet the challenge of addressing these important needs."

Fitzsimmons noted the rule-making proposal is a direct result of the governor's Columbia River Regional Initiative. Through a rule amendment, the initiative calls for enhancing both access to and the reliability of water supplies, as well as addressing the needs of fish.

The National Academy of Sciences has been hired to review existing science to determine what conditions Columbia River fish need to thrive and survive, and to advise the WDOE about whether those conditions are affected by water use.

In addition, the agency plans to analyze how water use is related to economic productivity in the region. Contacts also are being made with river managers, water users and affected parties to better understand how to meet the region's economic and environmental goals.

The state agency intends to adopt a final rule by the spring of 2004.

The following four documents are available at: www.ecy.wa.gov/programs/wr/ColumbiaRiverInitiative/colrivinithome.html

• Governor's response to petition for rule-making;
• Ecology's response to petition for rule-making;
• Ecology's CR-101 (notice of rule-making);
• Backgrounder on the Columbia River Regional Initiative.

Related Sites:
WDOE: www.ecy.wa.gov/ecyhome.html